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    Wisconsin Lawyer
    September 01, 2015

    Supreme Court Digest

    In this column, Prof. Daniel Blinka and Prof. Thomas Hammer summarize all decisions of the Wisconsin Supreme Court (except those involving lawyer or judicial discipline).

    Daniel D. Blinka & Thomas J. Hammer

    Administrative Law

    Administrative Rule-Making Procedures – Rules Affecting Availability of Housing in Wisconsin

    Wisconsin Realtors Ass’n v. Wisconsin Pub. Serv. Comm’n, 2015 WI 63 (filed 30 June 2015)

    HOLDING: In the promulgation of a Wisconsin Administrative Code chapter pertaining to wind energy systems, the submission of a housing impact report was not required by Wis. Stat. section 227.115(2).

    SUMMARY: The issue in this case was whether Wisconsin Administrative Code chapter PSC 128, “Wind Energy Systems” (hereinafter wind energy rules), is invalid because it was promulgated by the Public Service Commission (PSC) without compliance with statutory rule-making procedures. The Wisconsin Realtors Association (WRA) and other plaintiffs asserted that in promulgating the wind energy rules, the PSC failed to comply with the procedural requirement in Wis. Stat. section 227.115(2).

    Daniel D. BlinkaProf. Daniel D. Blinka, U.W. 1978, is a professor of law at Marquette University Law School, Milwaukee.

    Thomas J. HammerProf. Thomas J. Hammer, Marquette 1975, is a law professor and Director of Clinical Education at Marquette University Law School, Milwaukee.

    Under the version of section 227.115(2) then in effect, if any rule proposed by an agency (including the PSC) “directly or substantially affects the development, construction, cost, or availability of housing in this state,” then the Department of Commerce must prepare a report, referred to by the parties as a “housing impact report,” before that rule is submitted to the Legislative Council staff.

    The WRA asserted that a housing impact report was required for Wisconsin Administrative Code chapter PSC 128 as a matter of law. The circuit court concluded that chapter PSC 128 does not directly or substantially affect the development, construction, cost, or availability of housing in this state and thus that a housing impact report was not required. In an unpublished decision, the court of appeals affirmed.

    In a majority decision authored by Justice Abrahamson, the supreme court affirmed the court of appeals. It concluded that “[the] WRA has not demonstrated that a housing impact report was required as a matter of law for Wis. Admin. Code ch. PSC 128. The texts of the governing statutes and the wind energy rules do not demonstrate as a matter of law that the rules directly or substantially affect the development, construction, cost, or availability of housing in this state. We further conclude that invalidating Wis. Admin. Code ch. PSC 128 under the circumstances presented in the instant case would infringe on the role of the legislature, which we decline to do” (¶¶ 7-8).

    The majority noted that this case involves the 2009-10 version of the Wisconsin Statutes and that “the statutory landscape of agency rule-making has since changed. See 2011 Wis. Act. 21” (¶ 41). However, “[n]one of the changes enacted in 2011 are at issue in the instant case” (¶ 42).

    Chief Justice Roggensack filed a dissenting opinion that was joined in by Justice Ziegler.

    Criminal Law

    NGI Defense – Appellate Review

    State v. Kucharski, 2015 WI 64 (filed 7 July 2015)

    HOLDING: The court of appeals erred when it exercised its discretionary authority to grant a new trial to a defendant on a not guilty by reason of mental disease or defect plea.

    SUMMARY: Kucharski killed both his parents by shooting them multiple times, allegedly because voices commanded him to do so. He later phoned the police department and surrendered. Asserting a not guilty by reason of mental disease or defect (NGI) defense, Kucharski pleaded no contest in phase one of the trial and waived a jury for phase two. Both sides’ experts agreed that he suffered from a mental disease (schizophrenia) and lacked substantial capacity to appreciate the wrongfulness of his conduct or to conform to the law.

    The trial judge found that although Kucharski suffered from a mental disease, he failed to prove that he lacked substantial capacity to appreciate wrongfulness or to conform his conduct. In an unpublished decision, the court of appeals exercised its discretion to grant a new trial.

    The supreme court reversed the court of appeals in a majority opinion authored by Justice Crooks. The supreme court scrutinized the four points relied on by the court of appeals, which had essentially reweighed the evidence (see ¶ 26), and found that none of them supported a new trial.

    “To agree would allow any sufficiency of the evidence claim to be converted to an interest of justice claim, thereby evading the stringent standard for reviewing findings by the trier of fact. This is contrary to the law. It would also be an inappropriate use of the power to grant discretionary reversals. Put a different way, a reversal in the interest of justice is not intended to put the reviewing court in the shoes of the trier of fact in a way that is otherwise not permitted” (¶ 36). The circuit court’s findings that Kucharski had failed to meet the burden of proof were not clearly erroneous.

    Justice Bradley, joined by Justice Abrahamson, dissented. The majority, they contended, erred by “creating a new rule that limits the discretion of reviewing courts: a reviewing court’s decision to reverse in the interest of justice cannot be based on a reassessment of the evidence” (¶ 52).

    Penalty Enhancer – Prior Federal Conviction – Rule of Lenity

    State v. Guarnero, 2015 WI 72 (filed 9 July 2015)

    HOLDING: The defendant’s prior federal RICO conviction triggered an enhanced penalty for drug possession under state law.

    SUMMARY: The defendant was indicted under federal RICO statutes for his involvement in a gang-related drug conspiracy in 2005. He later pleaded guilty to a RICO conspiracy count. In 2012 he was charged with possession of cocaine under Wis. Stat. section 961.41(3g)(c), which contains an enhanced-penalty provision. The use of the penalty enhancer was based on the earlier federal RICO conviction. The circuit court denied defense motions challenging the state’s use of the penalty enhancer. In a published decision, the court of appeals affirmed. See 2014 WI App 56.

    The supreme court affirmed in a majority opinion written by Chief Justice Roggensack. The holding turned on the phrase “relating to controlled substances” in Wis. Stat. section 961.41(3g)(c). Relying on a dictionary definition, the court held that the term only requires a “connection” or “relation” (¶ 16), which was also consistent with case law (see ¶ 17). The federal RICO conviction was “based on racketeering activity” involving gang-related drug dealing (¶ 22).

    Moreover, the court’s scrutiny of the prior federal conviction’s underlying basis comported with established Sixth Amendment doctrine. Finally, the court found that the rule of lenity had no application in this case (see ¶ 27), and its interpretation of the statute did not deny the defendant fair notice under due process law.

    Justice Bradley dissented, joined by Justice Abrahamson. The majority, they contended, “beg[ged] the question” of whether a court may look beyond the bare statutory elements in assessing whether the prior conviction was drug related. Recent federal case law limits courts to a statute’s language and disallows an examination of facts underlying the conviction (see ¶ 48).

    Criminal Procedure

    Interrogation – Juveniles – Recordings

    State v. Moore, 2015 WI 54 (filed 16 June 2015)

    HOLDING: A juvenile’s statements to police officers were voluntary, and although officers erred when they turned off the recording device at the suspect’s request, the error was harmless.

    SUMMARY: Moore, age 15, was arrested and interrogated for his role in a homicide; he was charged as an adult. After the circuit court denied his motion to suppress his confessions, Moore pleaded guilty to a lesser offense. In a published decision, the court of appeals affirmed. See 2014 WI App 19.

    The supreme court affirmed in an opinion authored by Justice Prosser. First, Moore’s statements were voluntary despite his young age and the deceptions used by police. He exhibited the ability to “concoct and modify a story ‘on the fly,’” which suggested “sophistication and adaptability” (¶ 61). Nor did the police tactics, including minimizing Moore’s role, render his statements involuntary.

    Second, the court held that police officers violated the statutes governing recorded interrogations when they turned off the recorder at Moore’s request. The court reviewed the various statutes governing interrogations of juveniles and adults, especially those controlling when recording devices can be stopped.

    “A suspect who ‘refuse[s] to respond or cooperate’ must do more than request or express a preference that a recording device be turned off. Rather, the plain meaning of the statute is that the recording device may be turned off only when the suspect expresses or shows that he or she will no longer participate in the interrogation unless the recording device is turned off. A refusal must be affirmative; it is not enough for officers to assume that the interrogation will yield better results if the recording device is turned off” (¶ 80). A majority of the court held that Moore did not refuse to respond or cooperate unless the recorder was turned off.

    Taking up the remedy, the court observed tension between statutes regulating juvenile interrogations and statutes regulating adult interrogations. Although no four members of the court agreed on a proper remedy “for a violation of Wis. Stat. § 938.195 [interrogation of juveniles] in the criminal prosecution of a person under the age of 17,” the court resolved the matter by finding the error was harmless (¶ 91).

    Justice Ziegler concurred, joined by Chief Justice Roggensack, writing separately to contend that suppression of a juvenile’s unrecorded statements under Wis. Stat. section 938.31(3)(b) should not be an available remedy in prosecutions of juveniles in adult court (see ¶ 104).

    Justice Abrahamson dissented along with Justice Bradley on grounds that Moore’s 11-hour custodial interrogation was not voluntary (see ¶ 120).

    Custodial Interrogation – Right to Counsel

    State v. Delebreau, 2015 WI 55 (filed 16 June 2015)

    HOLDING: A Miranda waiver also suffices to show a valid waiver of the Sixth Amendment right to counsel.

    SUMMARY: Delebreau was arrested for delivering heroin. After he was formally charged with drug offenses and while he was in custody, investigators questioned him several times. On each occasion he waived his Miranda rights; investigators asserted they did not know that he had been formally charged or that a public defender represented him. Delebreau moved to suppress his incriminating statements on grounds that the police officers had violated his Sixth Amendment right to counsel. The circuit court denied his motion to suppress the statements, and a jury convicted him. In a published decision, the court of appeals affirmed. See 2014 WI App 21.

    The supreme court affirmed as well in a majority opinion, authored by Justice Prosser, that grapples with recent case law concerning interrogation and the Sixth Amendment right to counsel.

    First, the court held that a Miranda waiver “is sufficient to waive the Sixth Amendment right to counsel and that such a waiver is not presumed invalid simply because the defendant is represented by counsel” (¶ 6). The U.S. Supreme Court’s more recent decision in Montejo v. Louisiana, 556 U.S. 778 (2009), “superseded” and “effectively overruled” prior Wisconsin case law, especially State v. Dagnall, 2000 WI 82, 236 Wis. 2d 339, 612 N.W.2d 680 (¶¶ 45-49). Second, the right to counsel under the Wisconsin Constitution is “coextensive” with the approach in Montejo, providing no greater or different rights (¶ 57).

    Chief Justice Roggensack concurred, writing separately to the effect that the majority opinion “overstates” the holding in Montejo.

    Justice Abrahamson, joined by Justice Bradley, dissented on grounds that the Wisconsin Constitution requires suppression of Delebreau’s statements (see ¶ 83).

    Guilty Pleas – Amending Conviction to Reflect More Serious Offense Than One to Which Defendant Pleaded Guilty

    State v. Chamblis, 2015 WI 53 (filed 12 June 2015)

    HOLDING: The court of appeals’ decision remanding a case to the circuit court with instructions to enter an amended judgment of conviction for a more serious offense than the one to which the defendant entered a guilty plea violated the defendant’s right to due process.

    SUMMARY: Defendant Chamblis entered a guilty plea to a charge of sixth-offense operating with a prohibited alcohol concentration (PAC). Before accepting the plea, the circuit court informed Chamblis that the offense constituted a Class H felony and carried certain penalties. 

    The state appealed the conviction. It argued that the circuit court erred by excluding additional evidence the state sought to submit to prove that Chamblis possessed a sixth prior drunk-driving-related conviction. Had the circuit court admitted the evidence and found it sufficient to establish the additional prior conviction, Chamblis would have faced the decision to plead guilty to the charge of seventh-offense operating with a PAC, which is a Class G felony and would have exposed Chamblis to an increased range of punishment.

    In an unpublished decision, the court of appeals reversed. It concluded that the circuit court erred in excluding the evidence about an additional prior conviction. It further determined that the evidence was sufficient to prove the prior conviction. As a result it reversed the conviction and remanded the case to the circuit court with instructions to enter an amended judgment of conviction for seventh-offense operating with a PAC and impose sentence for a seventh offense.

    In a majority decision authored by Justice Crooks, the supreme court reversed the court of appeals.

    Assuming without deciding that the circuit judge erred in excluding the evidence the state sought to submit about an additional prior conviction, the supreme court held that “the court of appeals’ decision remanding the case to the circuit court with instructions to enter an amended judgment of conviction for operating with a PAC as a seventh offense and impose sentence for a seventh offense violates Chamblis’s right to due process. Chamblis entered a knowing, intelligent, and voluntary guilty plea to operating with a PAC as a sixth offense, not as a seventh offense. Because a seventh offense carries a greater range of punishment than does a sixth offense, the court of appeals’ remedy renders Chamblis’s plea unknowing, unintelligent, and involuntary. We further conclude that a remedy which requires Chamblis to withdraw his guilty plea is fundamentally unfair and thus violative of due process under the facts of this case” (¶ 60).

    “Accordingly, we reverse the decision of the court of appeals and uphold Chamblis’s conviction” (¶ 61).

    Justice Ziegler filed a concurring opinion.

    Sentence Credit – Indeterminate-Sentencing Law – Credit Upon Revocation of Parole

    State v. Obriecht, 2015 WI 66 (filed 7 July 2015)

    HOLDING: When a convicted defendant’s parole is revoked, the parolee’s indeterminate sentence that was issued by the circuit court resumes running so that it is available to accept sentence credit.

    SUMMARY: The defendant was convicted of seven misdemeanors and one felony before the implementation of “truth-in-sentencing” in Wisconsin. He was sentenced on the misdemeanors but placed on probation for the felony. He was not sentenced for the felony until his probation for that conviction was revoked. At that time, he was eligible to receive some presentence credit against the felony sentence but no credit was given. Subsequently the defendant was paroled from incarceration on the felony and thereafter that parole was revoked. At the time of parole revocation, he requested the sentence credit that was in issue on the appeal.

    The circuit court agreed that the defendant was owed sentence credit, but the court refused to apply the credit to his incarceration, and instead, applied the credit to his parole following incarceration. In a published decision, the court of appeals affirmed; it concluded that the plain language of Wis. Stat. section 302.11(7)(am) and (b) required that the defendant’s sentence credit be applied to reduce parole rather than reincarceration ordered by the Department of Hearings and Appeals. See 2014 WI App 42.

    In a majority decision authored by Chief Justice Roggensack, the supreme court reversed the court of appeals. It concluded that “because [the defendant] had completed the sentences for his misdemeanor convictions when his parole from incarceration for the felony was revoked and he first requested sentence credit, the only sentence to which sentence credit could be applied was the indeterminate sentence for the felony conviction” (¶ 48).

    It further held that “when a convicted defendant’s parole is revoked, the parolee’s indeterminate sentence that was issued by the circuit court resumes running so that it is available to accept sentence credit. Wis. Stat. § 304.072(4)” (¶ 48). [Editors’ Note: The majority opinion also includes a lengthy analysis with respect to the amount of sentence credit owed the defendant.]

    Justice Bradley filed a concurring opinion that was joined in by Justice Abrahamson and Justice Crooks.

    Effective Assistance of Counsel – Advising Defendant About Deportation Consequences

    State v. Ortiz-Mondragon, 2015 WI 73 (filed 9 July 2015)

    HOLDING: Defense counsel did not render ineffective assistance when advising his client about the deportation consequences of the client’s conviction.

    SUMMARY: Ortiz-Mondragon sought to withdraw his no-contest plea to a substantial battery committed as an act of domestic abuse. He argued that he should be allowed to withdraw his plea on the basis of ineffective assistance of counsel under Padilla v. Kentucky, 559 U.S. 356 (2010). “In Padilla the Supreme Court held that ‘[w]hen the law is not succinct and straightforward …, a criminal defense attorney need do no more than advise a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences. But when the deportation consequence is truly clear, the duty to give correct advice is equally clear’” (¶ 2) (citations omitted).

    The defendant contended that his trial counsel performed deficiently by failing to inform him that his no-contest plea to substantial battery, with a domestic abuse enhancer, was certain to result in his deportation and permanent exclusion from the United States. He argued that these immigration consequences were clear and certain because his substantial battery was a “crime involving moral turpitude” under federal immigration law, thereby rendering him automatically deportable and permanently inadmissible (see ¶ 3). The circuit court disagreed and denied the defendant’s motion to withdraw his plea. In a published decision, the court of appeals affirmed. See 2014 WI App 114.

    In a majority decision authored by Justice Ziegler, the supreme court affirmed the court of appeals.

    “Ortiz-Mondragon is not entitled to withdraw his no-contest plea to substantial battery because he did not receive ineffective assistance of counsel. Specifically, his trial counsel did not perform deficiently. Because federal immigration law is not ‘succinct, clear, and explicit’ in providing that Ortiz-Mondragon’s substantial battery constituted a crime involving moral turpitude, his attorney ‘need[ed] [to] do no more than advise [him] that pending criminal charges may carry a risk of adverse immigration consequences.’ Ortiz-Mondragon’s trial attorney satisfied that requirement by conveying the information contained in the plea questionnaire and waiver of rights form – namely, that Ortiz-Mondragon’s ‘plea could result in deportation, the exclusion of admission to this country, or the denial of naturalization under federal law.’ Counsel’s advice was correct, not deficient, and was consistent with Wis. Stat. § 971.08(1)(c). In addition, Ortiz-Mondragon’s trial attorney did not perform deficiently by failing to further research the immigration consequences of the plea agreement”    (¶ 5) (citations omitted).

    In a footnote, the majority recognized “that an alien could be ‘deportable’ if ‘convicted of a crime of domestic violence.’ 8 U.S.C. § 1227(a)(2)(E)(i). However, whether an alien will actually be deported because of such a conviction is far from certain. We do not address this issue because it was not raised, briefed, or argued by any of the parties in the case at issue” (¶ 3 n.4).

    Justice Bradley filed a dissenting opinion that was joined in by Justice Abrahamson.

    Effective Assistance of Counsel – Advising Defendant About Deportation Consequences

    State v. Shata, 2015 WI 73 (filed 9 July 2015)

    HOLDING: Defense counsel did not render ineffective assistance when advising his client about the deportation consequences of his conviction.

    SUMMARY: Defendant Shata sought to withdraw his guilty plea to one count of possession of marijuana with intent to deliver. He argued that he should be allowed to withdraw his plea on the basis of ineffective assistance of counsel under Padilla v. Kentucky, 559 U.S. 356 (2010). [Editors’ Note: A synopsis of the holding in Padilla v. Kentucky is included above in the digest of State v. Ortiz-Mondragon.]

    Shata contended that, under Padilla, his trial counsel performed deficiently by failing to inform him that he would be subject to “mandatory” deportation if convicted. Although trial counsel did inform Shata that he faced a “strong chance” of deportation if convicted, Shata argued that this advice was deficient because trial counsel should have told him that “his conviction would absolutely result in deportation.” Shata maintained that immigration law clearly provides that he would have been subject to mandatory deportation upon conviction (see ¶ 3).

    The state replied that Shata’s conviction made him “deportable” but did not make his deportation an absolute certainty (¶ 4). The circuit court denied the motion to withdraw the plea. In an unpublished decision, the court of appeals reversed.

    In a majority decision authored by Justice Ziegler, the supreme court reversed the court of appeals. It concluded that “Shata is not entitled to withdraw his guilty plea because he did not receive ineffective assistance of counsel. Specifically, Shata’s attorney did not perform deficiently. Shata’s attorney was required to ‘give correct advice’ to Shata about the possible immigration consequences of his conviction. Shata’s attorney satisfied that requirement by correctly advising Shata that his guilty plea carried a ‘strong chance’ of deportation. Shata’s attorney was not required to tell him that his guilty plea would absolutely result in deportation. In fact, Shata’s deportation was not an absolute certainty. Executive action, including the United States Department of Homeland Security’s exercise of prosecutorial discretion, can block the deportation of deportable aliens” (¶ 5) (citations omitted).

    Justice Bradley filed a dissenting opinion that was joined in by Justice Abrahamson.

    Traffic Stops – Unlawful Extension – Consent

    State v. Hogan, 2015 WI 76 (filed 10 July 2015)

    HOLDING: A law enforcement officer unlawfully extended a defendant’s traffic stop, but his later consent, after the officer told him he was free to leave, justified the search.

    SUMMARY: A sheriff’s deputy stopped the defendant’s vehicle for a seat belt violation but also suspected that the defendant was involved in drug use of some sort. When the defendant passed “all” field sobriety tests that the officer compelled him to perform, the defendant was told he was free to leave, some 24 minutes after the seat belt stop. Approximately 16 seconds later, the officer asked him to consent to a search of his vehicle, and the defendant agreed. Evidence relating to drug use and manufacture was found in his truck. The circuit court denied the defendant’s motion to suppress the evidence, and the court of appeals affirmed the circuit court.

    The supreme court affirmed in an opinion written by Justice Prosser. The court held that the officer had unlawfully extended the seat belt traffic stop, although this determination was a “close question” compelled by the state’s failure to “tie up loose ends” at the suppression hearing in this case (¶ 53). Nonetheless, the defendant’s later consent to the search of his vehicle came only after he had been told he was free to leave.

    The opinion discusses the interplay of consent doctrine and attenuation analysis (see ¶ 57). “Because the police did not exploit the unlawful extension of the stop in order to gain Hogan’s consent to search his vehicle, attenuation analysis is unnecessary in this case” (¶ 9). In sum, “[a] reasonable person, under the totality of the circumstances, would have felt free to leave – to drive across the street to his home” (¶ 69). Instead, the defendant acceded to the request to search his truck. The unlawful extension of the traffic stop was not “a but-for cause of the consent” (¶ 71).

    Justice Bradley dissented, joined by Justice Abrahamson, on grounds that an attenuation analysis was required in this case, especially because the request to search came a scant 16 seconds after the defendant was told he was “free to leave” (¶ 82). The dissent concluded that there was no “real break” between the unlawful stop and the consent to search (¶ 109).

    Traffic Stops – Police Officer’s Mistake of Law

    State v. Houghton, 2015 WI 79 (filed 14 July 2015)

    HOLDING: A valid traffic stop can be based on an officer’s objectively reasonable mistake of law.

    SUMMARY: A police officer pulled over the defendant’s car because it had just one license plate and several objects on the dashboard, which the officer believed constituted violations of state traffic laws. A consent search of the car revealed drug-related evidence. The circuit court denied the defendant’s motion to suppress that evidence. In an unpublished decision, the court of appeals reversed because the officer’s beliefs about state traffic laws were incorrect.

    The supreme court reversed the court of appeals in a majority opinion, authored by Justice Prosser, that addresses the recent U.S. Supreme Court decision in Heien v. North Carolina, 135 S. Ct. 530 (2015). First, the court held that “reasonable suspicion that a traffic law has been or is being violated is sufficient to justify all traffic stops” (¶ 30). Put differently, probable cause is always sufficient but not “indispensable” (¶ 22).

    Second, the court overruled all state cases that conflict with Heien, including a 2014 case: “under Heien, a seizure predicated on reasonable suspicion based on a law enforcement officer’s objectively reasonable mistake of law is not a violation of an individual’s Fourth Amendment rights” (¶¶ 46, 52). What is reasonable may be wrong.

    Third, the officer was wrong about traffic laws, which do not prohibit the placement of all objects on a dashboard (see ¶ 65). Relying on Justice Kagan’s concurrence in Heien (in which she wrote about a “genuinely ambiguous” statute that requires “hard interpretive work” (¶ 68)), the court held that the officer’s mistaken interpretation of traffic law in this case was objectively reasonable (see ¶ 70). (The court also briefly addressed the officer’s reasonably mistaken view that all cars must have two license plates in Wisconsin.)

    Dissenting, Justice Abrahamson, joined by Justice Bradley, contended that the Wisconsin Constitution and controlling case law conflict with Heien. (“There is scarcely any law that does not admit of some ingenious doubt” (¶ 92).)

    John Doe Proceedings – Investigations – Campaign Finance

    State ex rel. Two Unnamed Petitioners v. Peterson, State ex rel. Schmitz v. Peterson, State ex rel. Three Unnamed Petitioners v. Peterson, 2015 WI 85 (filed 16 July 2015)

    HOLDINGS: The court ordered a John Doe investigation to be “closed” because a special prosecutor’s theory regarding “political purposes” as related to campaign finance was unsupported by law; a lower court properly quashed subpoenas and search warrants; and although “serious concerns” surfaced about the John Doe investigation’s formation, they did not merit a supervisory writ.

    SUMMARY: Years ago, prosecutors began John Doe investigations into alleged illegal campaign activity that triggered a series of challenges culminating in this decision. The supreme court’s opinion encompasses three distinct yet related cases that embrace 14 “complex” issues (see ¶ 6). The sundry opinions by the justices run for hundreds of pages and resist a concise summary beyond a statement of the holdings, concurrences, and dissent, which appear below.

    Justice Gableman wrote the majority opinion. In the first case, Two Unnamed Petitioners, the court held as follows:

    “[T]he definition of ‘political purposes’ in Wis. Stat. § 11.01(16) is unconstitutionally overbroad and vague under the First Amendment to the United States Constitution and Article 1, Section 3 of the Wisconsin Constitution because its language ‘“is so sweeping that its sanctions may be applied to constitutionally protected conduct which the state is not permitted to regulate.”’ … However, a readily available limiting construction exists that we will apply and that will prevent the chilling of otherwise protected speech; namely, ‘political purposes’ is limited to express advocacy and its functional equivalent as those terms are defined in [U.S. Supreme Court cases]. With this limiting construction in place, Chapter 11 does not proscribe any of the alleged conduct of any of the Unnamed Movants. The special prosecutor has not alleged any express advocacy, and issue advocacy, whether coordinated or not, is ‘beyond the reach of [Ch. 11].’ … Accordingly, we invalidate the special prosecutor’s theory of the case, and we grant the relief requested by the Unnamed Movants” (¶ 10).

    “To be clear, this conclusion ends the John Doe investigation because the special prosecutor’s legal theory is unsupported in either reason or law. Consequently, the investigation is closed. Consistent with our decision and the order entered by Reserve Judge Peterson, we order that the special prosecutor and the district attorneys involved in this investigation must cease all activities related to the investigation, return all property seized in the investigation from any individual or organization, and permanently destroy all copies of information and other materials obtained through the investigation. All Unnamed Movants are relieved of any duty to cooperate further with the investigation” (¶ 11).

    In the second case,Schmitz v. Peterson, the court held “that the special prosecutor has failed to prove that Reserve Judge Peterson violated a plain legal duty when he quashed the subpoenas and search warrants and ordered the return of all property seized by the special prosecutor. In quashing the subpoenas and search warrants, Reserve Judge Peterson exercised his discretion under the John Doe statute, Wis. Stat. § 968.26, to determine the extent of the investigation. Because the purpose of a supervisory writ does not include review of a judge’s discretionary acts, … the supervisory writ sought by the special prosecutor is denied, and Reserve Judge Peterson’s order is affirmed” (¶ 12).

    In the third case,Three Unnamed Petitioners, the court held that “the Unnamed Movants have failed to prove that either Reserve Judge Kluka or Reserve Judge Peterson violated a plain legal duty by: (1) accepting an appointment as a reserve judge; (2) convening a multi-county John Doe proceeding; or (3) appointing a special prosecutor. Although the circumstances surrounding the formation of the John Doe investigation raise serious concerns, and although the appointment of the special prosecutor may well have been improper, such concerns do not satisfy the stringent preconditions for a supervisory writ. Put another way, were we to grant the supervisory writ in this case, we would risk ‘transform[ing] the writ into an all-purpose alternative to the appellate review process,’ which we cannot do. Id. Accordingly, we deny the supervisory writ and affirm the decision of the court of appeals” (¶ 13).

    Justice Prosser concurred, joined at points by Chief Justice Roggensack, Justice Ziegler, and Justice Gableman. He provided a separate analysis of multiple points relating to campaign finance and the John Doe investigation.

    Justice Ziegler filed a separate concurring opinion that addressed the execution of various search warrants issued as part of the John Doe investigation.

    Justice Abrahamson concurred in part and dissented in part. She concluded that the majority opinion adopts “an unprecedented and faulty interpretation of Wisconsin’s campaign finance law and of the First Amendment” (¶ 347).

    Sentencing – Judicial Bias

    State v. Herrmann, 2015 WI 84 (filed 15 July 2015)

    HOLDING: Statements made by the sentencing judge did not reveal a great risk of actual bias on the judge’s part, and the defendant thus failed to rebut the presumption of judicial impartiality.

    SUMMARY: Defendant Herrmann asserted that the circuit judge’s statements at sentencing revealed that she lacked impartiality, in violation of his due process rights. Specifically, he contended that the judge’s references to her sister’s death in a car accident similar to the one involved in Herrmann’s case created the appearance of bias. In a postconviction motion, he sought resentencing by a different judge. The circuit court denied the motion. In an unpublished decision, the court of appeals affirmed.

    The supreme court affirmed the court of appeals. The court’s lead opinion, authored by Justice Bradley, begins with “the presumption that a judge acted fairly, impartially, and without prejudice. A defendant may rebut the presumption by showing that the appearance of bias reveals a great risk of actual bias. Such a showing constitutes a due process violation” (¶ 3) (citations omitted).

    The court carefully analyzed the statements of the sentencing judge, quoting at length from the sentencing transcript. It recognized “that the precedent established by the United States Supreme Court and our court of appeals provides that in limited situations the appearance of bias can offend due process. Specifically, the appearance of bias violates due process when there is ‘a great risk of actual bias’” (¶ 40) (citations omitted).

    The lead opinion’s analysis relies on authorities including Caperton v. A.T. Massey Coal Co., 556 U.S. 868 (2009); State v. Goodson, 2009 WI App 107; and State v. Gudgeon, 2006 WI App 143. In the end it concludes that the defendant failed to rebut the presumption of impartiality. “When the sentencing court’s statements are viewed in context, they do not reveal a great risk of actual bias” (¶ 4).

    Justice Prosser filed a concurring opinion. Although agreeing with the end result of the lead opinion, he did not join it because it relies on the Caperton, Goodson, and Gudgeon decisions, which “tend to confuse and undermine the administration of justice” (¶ 70). “These cases create ‘objective’ tests of bias that are so loose and vague that they are almost impossible for courts to apply in a fair and consistent manner” (¶ 71). Chief Justice Roggensack joined Justice Prosser’s concurrence.

    Justice Ziegler also filed a concurring opinion. Although agreeing with the end result of the lead opinion, she wrote separately to discuss the due process test of Caperton. “I note that the Judicial Code and the disqualification statute provide for specific factual circumstances under which a judge must recuse, even when that judge could be completely fair. See, e.g., SCR 60.04(4)(a) to (f); Wis. Stat. § 757.19(2)(a) to (f). Caperton makes clear that a judge need not recuse simply because someone claims that the judge is partial. In other words, Caperton concludes that a reasonable, well-informed person, knowledgeable about judicial ethical standards and the justice system and aware of the facts and circumstances the judge knows or reasonably should know, would reasonably question the judge’s ability to be impartial because of actual bias or the probability of a serious risk of actual bias. Such circumstances are exceedingly rare” (¶ 160). Chief Justice Roggensack and Justice Gableman joined Justice Ziegler’s concurrence.

    Jury Instructions – Harmless Error

    State v. Williams, 2015 WI 75 (filed 10 July 2015)

    HOLDING: The court, clarifying precedent regarding erroneous jury instructions and harmless error, held that sufficient evidence supported the defendant’s felony-murder conviction.

    SUMMARY: A jury convicted the defendant of felony murder for his role in the deaths of two men during a drug-related robbery. Specifically, the verdicts convicted him of felony murder for his role in the death of victim A while acquitting him of attempting to rob victim A; it was undisputed, however, that sufficient evidence would have supported a conviction for attempting to rob victim B.

    The state argued the victim B-robbery scenario at trial, but the jury instructions focused on the attempt to rob victim A. The court of appeals certified the case to the supreme court to clarify “two seemingly conflicting precedents,” namely, State v. Wulff, 207 Wis.2d143, 557 N.W.2d813 (1997), and State v. Beamon, 2013 WI 47, 347 Wis.2d559, 830 N.W.2d681 (¶ 4).

    The supreme court affirmed the conviction in a majority opinion authored by Justice Prosser. It held “that a jury instruction may be considered erroneous when it describes a theory of criminal culpability that was not presented to the jury or it omits a valid theory of criminal culpability that was presented to the jury. Convictions under erroneous jury instructions are subject to harmless error review. When an erroneous instruction has been given but it is clear beyond a reasonable doubt that the jury would have convicted the defendant had the proper instruction been given, the jury verdict can be affirmed” (¶ 6).

    Clarifying precedent, the court first “reiterate[d] that errant jury instructions are subject to harmless error analysis.… This includes errors that omit an element … as well as errors that create requirements beyond the statute” (¶ 51). “To affirm a conviction based on an erroneous instruction, a court must be convinced beyond a reasonable doubt that the jury still would have convicted the defendant of the charge had the correct jury instruction been provided” (¶ 59).

    The court illustrated its “simplif[ied]” analysis by applying it to Beamon and Wulff (¶ 62). “Thus, when an erroneous jury instruction raises the State’s burden by adding an element not necessary for conviction, and the jury convicts, the jury verdict will often sufficiently show that the jury would have convicted if instructed on the proper elements. However, if an erroneous jury instruction omits an element or instructs on a different theory, it will often be difficult to surmise what the jury would have done if confronted with a proper instruction, even if the jury convicted under the erroneous instruction” (id.). Applying this approach to this record, the court held that sufficient evidence supported the conviction.

    The supreme court also held that the defendant received effective assistance of counsel in the face of claims that an allegedly biased juror should have been struck and that counsel should have objected to “gruesome” crime-scene photos.

    Justice Abrahamson concurred in the judgment but not the opinion, which she criticized for failing to clarify the “confusion” in Beamon (¶ 92). In particular, she stressed the distinction between a harmless-error analysis and a sufficiency-of-the-evidence analysis.

    Public Records Law

    Attorney Fees – Prevailing “in Whole or in Substantial Part” in Mandamus Action to Enforce Public Records Request

    Journal Times v. Racine Bd. of Police & Fire Commissioners, 2015 WI 56 (filed 18 June 2015)

    HOLDING: The plaintiff did not prevail “in substantial part” so as to be entitled to attorney fees, damages, or other actual costs.

    SUMMARY: This case involves Wisconsin’s Public Records Law, which is designed to make existing records available to the public unless withholding such documents is specifically authorized by law (see ¶ 55). However, the law does not require an authority to provide requested information if no record exists, or to simply answer questions about a topic of interest to the requester (id.). The Public Records Law provides a requester with the ability to enforce a public records request in a mandamus action. See Wis. Stat. § 19.37(1). A requester who prevails “in substantial part” in such an action is entitled to “reasonable attorney fees, damages of not less than $100, and other actual costs….” See Wis. Stat. § 19.37(2)(a).

    The Journal Times of Racine (the newspaper) commenced this mandamus action under the Public Records Law after the Racine Board of Police and Fire Commissioners (the commission) denied the newspaper’s request for information pertaining to a special meeting that the commission held in closed session. The newspaper is no longer seeking disclosure because the commission provided the requested information and is in compliance with the request. The newspaper also sought the recorded motions and votes from the closed session; as it turns out, this record (in the form of meeting minutes) did not yet exist when the mandamus action was commenced.

    The newspaper sought reasonable attorney fees, damages, and other actual costs because, it argued, it prevailed “in whole or in substantial part” in the mandamus action. The commission responded that the Public Records Law grants access to records, not information, and that the newspaper did not prevail in its lawsuit because a court cannot require release of a record that does not exist.

    In a majority decision authored by Justice Ziegler, the supreme court concluded that the newspaper did not prevail in substantial part in this action “because the Commission did not unlawfully deny or delay release of the subject record” (¶ 7).

    “[N]o responsive record existed at the time of the request and no record was produced because of the lawsuit. While a records request need not be made with exacting precision to be deemed a valid public records request, the Newspaper is a requester and wordsmith with experience and sophistication. Here, the requests could reasonably be perceived as seeking information, rather than a record. Although under no obligation to provide information in response to a records request, the Commission provided the Newspaper with the answers to its questions by providing information…. At the time of the request and at the time that the information was provided, no record existed that could have been responsive to the request…” (¶ 8).

    “Whether a record should have been in existence at the time of the request is a matter of the open meetings law, not public records law. Certainly the Commission cannot avoid a public records request by failing to timely create a
    record. In this case, however, the Commission responded to the Newspaper with reasonable diligence and released the requested information while maintaining that it was not legally required to do so and at a time when no record existed. Neither the facts nor the law support the conclusion that the Newspaper prevailed in ‘substantial part’” (id.).

    Justice Prosser did not participate in this decision. Justice Abrahamson filed a concurring opinion that was joined in by Justice Bradley.

    Real Property

    Real Estate Agents – Broker’s Commission – “Enforceable Contracts”

    Ash Park LLC v. Alexander & Bishop Ltd., 2015 WI 65 (filed 7 July 2015)

    HOLDING: A real estate broker was entitled to a broker’s commission under the terms of the listing contract because the broker located a buyer for the property and an “enforceable contract” was entered into between the seller and the buyer; this result obtains even though the sale was never consummated.

    SUMMARY: A one-party listing contract between Ash Park (the seller) and Re/Max 
    (the broker) provides in relevant part that Ash Park shall pay a broker’s commission to Re/Max if Ash Park enters into an “enforceable contract” for the sale of certain land. Re/Max listed the property and secured a buyer (Alexander & Bishop), which entered into a contract for the purchase of the land. The closing of the sale did not take place because Alexander & Bishop failed to purchase the property.

    Ash Park sued Alexander & Bishop seeking specific performance of the purchase contract. Ash Park prevailed in the circuit court, the court of appeals, and supreme court, but despite the specific performance judgment against it, Alexander & Bishop failed to pay for or acquire the property.

    The issue before the courts in this case was whether Re/Max is entitled to its broker’s commission ($378,000) under the terms of the listing contract. The circuit court determined that Re/Max had not earned a broker’s commission. In a published decision, the court of appeals reversed the circuit court. See 2014 WI App 87. In a majority decision authored by Justice Abrahamson, the supreme court affirmed the court of appeals.

    The supreme court concluded that “the purchase contract between Ash Park and Alexander & Bishop constitutes an ‘enforceable contract’ within the meaning of the listing contract between Ash Park and Re/Max. Re/Max is therefore entitled to a broker’s commission from Ash Park even though Alexander & Bishop breached the purchase contract and the sale was never consummated”  (¶ 7). Although the listing contract does not define the term “enforceable contract,” leading commentators explain that a contract is said to be enforceable when a promisee is entitled to either a money judgment, an injunction, or specific performance because of a breach by the promisor (see ¶ 46).

    “Because Ash Park was indisputably able to compel observance of the purchase contract it entered into with Alexander & Bishop by seeking a remedy (namely specific performance) for a breach, the purchase contract falls within the ordinary and legal meaning of the phrase ‘enforceable contract.’ Indeed, in upholding the specific performance judgment against Alexander & Bishop, this court made clear that the purchase contract between Ash Park and Alexander & Bishop is enforceable” (¶ 50). The failure of Ash Park and the courts to successfully compel Alexander & Bishop’s performance does not mean the purchase contract between Ash Park and Alexander & Bishop was not enforceable (see ¶ 70).

    “Because an enforceable contract for the sale of the property was created, Re/Max earned a commission under the listing contract. Declining to order Ash Park to pay Re/Max its commission is not only contrary to the contract language; it is also unfair to Re/Max, which expended efforts to locate a buyer” (¶ 77). Further, the court noted that Ash Park “could have negotiated with Re/Max to modify the terms of the commission section of the listing contract by conditioning Re/Max’s right to a commission on consummation of the sale” (¶ 81).

    Justice Prosser did not participate in this decision. Chief Justice Roggensack filed a concurring opinion.

    Torts

    Statute of Limitation – Discovery Rule

    Christ v. Exxon Mobil Corp., 2015 WI 58 (filed 23 June 2015)

    HOLDING: The applicable statute of limitation begins running when the survival claims and wrongful death claims were discovered, if the plaintiffs can show that they exercised reasonable diligence in investigating and discovering their claims.

    SUMMARY: Several plaintiffs brought wrongful death and survivor claims against Exxon and other defendants for injuries and deaths associated with benzene contamination at a tire manufacturing plant. The circuit court granted summary judgment against eight plaintiffs on grounds that their claims were filed too late. The court of appeals summarily reversed the circuit court.

    The supreme court affirmed the court of appeals in a majority opinion authored by Justice Prosser. The court held “that the discovery rule permits the accrual of both survival claims and wrongful death claims after the date of the decedent’s death. In the absence of a legislatively created rule to the contrary, claims accrue when there is a ‘claim capable of present enforcement, a suable party against whom it may be enforced, and a party who has a present right to enforce it’” (¶ 5).

    The opinion begins with a careful review of wrongful death and survival claims (see ¶ 18). It then turns to the discovery rule and its application to both types of claims. The court held that “the discovery rule continues to apply to wrongful death claims in the only way in which it reasonably can: by permitting those claims to accrue ‘on the date the injury is discovered or with reasonable diligence should be discovered’ by the wrongful death beneficiary, ‘whichever occurs first’” (¶ 47).

    As for survival claims, the court summarized its holding as follows: “because the personal representative ‘stands in the decedent’s shoes’ for purposes of pursuing survival claims on behalf of the decedent’s estate, the discovery rule makes it possible for those claims to accrue after the decedent’s death. Survival claims accrue ‘on the date the injury is discovered or with reasonable diligence should be discovered’ by either the decedent or an appropriate third party (often the decedent’s personal representative), ‘whichever occurs first’” (¶ 62).

    The court closed with several “caveats” relating to the duty of reasonable diligence, the burden of proof on defenses and claims, and pertinent public policy considerations. The case was remanded so that the plaintiffs could attempt to demonstrate that their claims accrued less than three years before they filed their complaints.

    Chief Justice Roggensack dissented, joined by Justice Ziegler. They contend that death vests claims for both wrongful death and survivor actions.

    Negligence – Special Knowledge

    Dakter v. Cavallino, 2015 WI 67 (filed 7 July 2015)

    HOLDING: The “truck driver negligence instruction” did not misstate the law or mislead the jury.

    SUMMARY: Individuals sued the driver of a semi-trailer truck for injuries they received in a collision between the plaintiffs’ car and the truck. A jury awarded substantial damages. On appeal, the defendant contended that the circuit court erred by reading an instruction on the special knowledge of truck drivers. In a published decision, the court of appeals assumed, without deciding, that the instruction was erroneous but found that any error was not prejudicial. See 2014 WI App 112.

    The supreme court affirmed in a majority opinion authored by Justice Abrahamson, holding that the truck-driver instruction accurately stated the law. “First, we set forth the negligence principles that govern the instant dispute, namely the superior knowledge rule, which requires an actor with special knowledge or skill to act commensurate with that knowledge or skill, and the profession or trade principle, which requires an actor engaged in a profession or trade to act as a reasonable member of such profession or trade would act under the same or similar circumstances” (¶ 35).

    “Second, we determine that these two negligence principles apply to the defendant and thus that the truck driver negligence instruction did not misstate the law” (¶ 36).

    “Third, we determine that in the context of the jury instructions as a whole, the truck driver negligence instruction was not misleading” (¶ 37).

    The court rejected the defendant’s contention that the instructions imposed a higher standard of care on him as a truck driver (see ¶ 85). It conceded, however, that the instruction could have been more clearly worded (see ¶ 97).

    Justice Roggensack concurred. Although she found that the instruction misstated the law, any error was harmless (see ¶ 99).

    Justice Ziegler also concurred, joined by Justice Gableman. She agreed that the truck-driver instruction accurately stated the law but wrote separately to emphasize several points about state law on a tortfeasor’s special knowledge and skills.

    Sovereign Immunity – Wisconsin Department of Corrections

    Mayhugh v. State, 2015 WI 77 (filed 10 July 2015)

    HOLDING: Sovereign immunity barred recovery in tort against the Wisconsin Department of Corrections (DOC).

    SUMMARY: The defendant was an inmate at a correctional institution operated by the DOC. While there, he was injured by a foul ball that struck him as he watched, from the bleachers, a baseball game being played in the institution’s recreational yard. He sued the DOC and others in tort, alleging negligence. The DOC moved for dismissal arguing that, as a state agency, it was entitled to sovereign immunity. The circuit court agreed with the DOC and dismissed the action. In an unpublished decision, the court of appeals affirmed.

    In a majority decision authored by Justice Bradley, the supreme court affirmed the court of appeals. The court began its analysis by noting that, as a general matter, an action against a state agency or board is deemed an action against the state. “However, when the state creates an entity independent from the state, which acts as neither its arm nor its agent, such entity falls outside the protection of sovereign immunity. Cases often refer to such entities as ‘independent going concerns’” (¶ 13) (citations omitted).

    In this case, the court concluded that “the statutory powers granted to the DOC do not render it an independent going concern. Courts must consider both the character and breadth of the statutory powers granted to the entity when determining whether it is an independent going concern. Here, despite their breadth, the character of the DOC’s powers reveals that the legislature did not intend for the DOC to be anything other than an arm of the state” (¶ 32).

    The court further held that the legislature has not expressly waived the DOC’s sovereign immunity. Wisconsin Statutes section 301.04, which permits the DOC to sue and be sued, is not an express waiver of the DOC’s tort immunity (see ¶ 4). Rather, the “sue and be sued” language “clarifies that the DOC is a legal entity with the capacity to sue and be sued once immunity has been waived” (¶ 41).

    Justice Gableman filed a concurring opinion.


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